Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

Imagine if California decided to force Wicca on the people as the religion of choice, and all other religions would be banned. Would it really matter that this was not a federal regulation? This is why the majority of the amendments have been applied against the states by the Supreme Court. This is true of the First Amendment, even though it states that “Congress shall make no law . . .” Given that the Second Amendment simply says that “the right of the people shall not be infringed,” containing no explicit mention of which government is prohibited from infringing, it should be an even stronger candidate for its application against state infringement. This is especially true since none of the Heller justices, not even those dissenting, endorsed the “states’ rights” approach.

The Supreme Court in Heller noted that the right to keep and bear arms was not dependent upon the Constitution for its existence and therefore was a natural right that neither the state nor federal government has a right to infringe without due process. Natural Law teaches that there are certain rights and freedoms that are not granted to us by the government but rather come from human nature. Since these rights do not come from the government, the government cannot take them away. For example, the government cannot declare that all people must worship one god and that worshipping any other god is unlawful. The freedom of religion is a natural right and therefore no government can take that right away, absent due process.

If the government does try to take a natural right away, an independent judiciary can step in and protect the individual. It is therefore important to remember that if the government attempts to usurp a right that derives from nature—like the right of self-defense— we are protected from the government by the courts, which have the ability and the duty to prevent the government from such an attempt. The court must enforce the Natural Law and ensure that it is not taken away without procedural due process.

Like Natural Law, when the Constitution grants us certain rights and states that those rights cannot be infringed, this means that the government cannot take away those rights without due process of law. “Due process” is a term used in both the Fifth and Fourteenth Amendments. The Fifth states that “no person shall be . . . deprived of life, liberty or property, without due process of law.” The Fourteenth Amendment states, “nor shall any State deprive any person of life, liberty, or property, without due process of law” (emphasis added).

In essence, both these amendments require that any deprivations of rights inherent in our humanity or directly protected by the Constitution cannot be taken away by any government without, at the least, a notice to the person of charges or proceedings, a hearing at which the person may speak and that is presided over by an impartial judge and a neutral jury; basically, a fair jury trial. It was the Fourteenth Amendment Due Process Clause that the Supreme Court used in order to incorporate most of the Bill of Rights against the states in a series of decisions.

Unfortunately, rather than incorporating the entire Bill of Rights in one round, the Supreme Court used a case-by-case basis to decree that each Amendment protects the people from state governments. This resulted in almost, but not all, of the first eight amendments being applied against the states. The Supreme Court never issued a decision that expressly incorporated the Second Amendment to the states, until Heller.

This loophole in Heller has garnered notice, and the Supreme Court recently agreed to hear an appeal of NRA v. Chicago, which is a case involving a local ban on handguns in the City of Chicago. The lower court held that the Second Amendment did not apply to the states unless it was directly incorporated by the Supreme Court. In a similar case, Maloney v Cuomo, the court held that Heller, and therefore the Second Amendment, was only applicable to the federal government and that therefore the states were allowed to infringe on the Constitutional right to keep and bear arms.26 The Maloney court erroneously stated that “it is settled law . . . that the Second Amendment applies only to limitations the Federal government seeks to impose on this right.”

To back up its phony settled-law argument, the Maloney court utilized Presser v. Illinois, which is Supreme Court precedent from 1886. This was a case decided far before the Supreme Court developed the incorporation doctrine, and therefore, as the Heller court noted, “did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” The Maloney court, desperate to preserve its own political agenda, utilized a translucent shield to protect this agenda. Courts rarely use precedent that is over 120 years old, which has not been ratified in later decisions and laws. For example, a court would never think to use the analysis from one hundred years before Miranda to determine whether a confession was properly obtained. Or if it tried, the outcry would be deafening. This is what the Maloney court did. The Supreme Court will hear an appeal of Maloney as well.

Is this what the Founding Fathers imagined when they wrote the Bill of Rights, that the people’s rights to defend themselves against a tyrannical government applied only as to the federal government, and the state could be as tyrannical as it wanted? To be fair, there is only one sensible reading of Heller on the question of whether the Second Amendment restrains only the federal government, or all governments. By writing that the right to keep and bear arms, like the freedom of speech, precedes the existence of the United States, by characterizing it as “ancient,” and by describing its use against tyrants throughout history, the Supreme Court found and declared that the individual right to